Ching v. Ailā: protecting public trust lands at Pōhakuloa

The lawsuit seeks to force the State of Hawaiʻi to fulfill its obligations to protect public trust lands currently used by the United States military at Pōhakuloa by preventing the BLNR from renewing its lease there.

Clarence Kūkauakahi Ching and Mary Maxine Kahaulelio have asked Hawaiʻi’s courts to declare that the state’s Board of Land and Natural Resources (BLNR) breached its obligations to protect Pōhakuloa public trust lands. The lawsuit, Ching v. Ailā, seeks to enjoin the BLNR from renewing its lease of Pōhakuloa Training Area (PTA) to the U.S. army.

The current lease, dated on August 17, 1964 and expiring August 16, 2029, allows the U.S. to use 22,836 acres of Pōhakuloa lands for military purposes for $1 over the entire lease period. These lands are part of the PTA complex, which is the largest military training area (approximately 132,000 acres) in Hawaiʻi. PTA houses 31 direct-fire ranges, 23 live-fire exercise areas, a bivouac, aviation training areas, and over 100 artillery and/or mortar firing points and ammunition holding areas (U.S. Dep’t of the Army). Last year, the BLNR and the U.S. army began negotiations which could extend the BLNR’s lease of PTA to the year 2078.

Under the existing lease, the military is supposed to “make every reasonable effort” to remove unexploded ordnance “upon completion of a training exercise” or before the public can reenter these lands, whichever comes first and to clean up its rubbish. BLNR chairperson William Ailā, Jr. admitted to the possibility that unexploded ordnance (UXO) and other munitions and explosives of concern (MEC) exist on leased PTA lands, as does the Army’s own environmental impact statements. According to the army, “[d]ecades of using PTA as a training area have introduced a significant risk of encountering MEC/UXO” (U.S. Dep’t of the Army).

At an earlier October 16, 2014 hearing, Ching pointed to Ailā’s statement that the DLNR did not know if the army had complied with clean-up provisions and had no government records to prove compliance as evidence that nothing had been done. However, Hawaiʻi First Circuit Judge Gary B. Chang considered this absence of evidence to be not-quite enough.

The recent December 12, 2014 hearing resulted in a temporary draw between the two parties. Deputy attorney general for BLNR, Daniel Morris, pointed to two instances—a site visit of the Pōhakuloa Training Area (PTA) in 1984 and a letter sent to U.S. Army representatives in November 2014—as evidence that they were doing “something” to protect those lands. Judge Chang decided these two actions were enough to raise a genuine issue of material fact as to whether DLNR discharged its public trust duties to protect Pōhakuloa. Judge Chang declined to enter judgment on the pleadings for BLNR or summary judgment Ching and Kahaulelio. The judge’s ruling that the plaintiffs did not meet the tough legal standard to merit summary judgment does not let BLNR off the hook.

As Morris argued, BLNR did not have to prove it complied with state trust duties to overcome Ching’s motion for summary judgment, but only had to show a genuine dispute of fact. Going forward, however, the question will not merely be whether BLNR did “something” to enforce the lease. Judge Chang implicitly recognized this direction when he summarily rejected BLNR’s argument that the case should be dismissed for failing to include the Army by stating, “the Army is not an indispensable party because the focus is on the state and its duties on public trust lands.”

Ching v. Ailā calls out the BLNR on its public trust duties to protect Pōhakuloa’s natural and cultural resources and to administer these lands as part of a public land trust. The state owes trust duties to the people of Hawaiʻi to protect public natural resources (Haw. Const. art. XI, § 1) and, under Hawaiʻi’s public lands trust, to administer Hawaiian entitlements to public trust land revenues and rights to access lands and resources for traditional, cultural practices. Ching and Kahaulelio are Hawaiian cultural practitioners (Haw. Const. art. XII, § 7) and beneficiaries of Hawaiʻi’s public lands trust, which includes Pōhakuloa lands. Pōhakuloa itself is a sacred landscape, a fragile ecosystem home to endangered plants, birds, and the native Hawaiian ʻopeʻapeʻa hoary bat, and a site of hundreds of documented significant archaeological and cultural features.

What precise actions BLNR must take to fulfill its public trust duties has not been comprehensively laid out in Hawaiʻi’s legal framework. Ching’s attorney, David Kimo Frankel, argued that a declaration telling the state to fulfill their public trust duties is sufficient. “If you give them a list, they will think it is exhaustive of their trust duties. We cannot think of all of them.”